Sources and Schools Of Hindu Law
Written by Nakshatra Dapse
INTRODUCTION
The term “source of law” can refer to various aspects, including the authority that issues binding norms of conduct, the person who creates legislation, and the material from which rules and laws are derived. In the context of Hindu law, it refers to legal evidence and has been followed for thousands of years in the Indian subcontinent. The Vedas, which have been followed by people for thousands of years, have become de facto law. Important statutes such as the Hindu Marriage Act of 1955, the Hindu Adoption and Maintenance Act of 1956, and the Hindu Succession Act of 1956 have been formalized.
Hindu law is said to have come from the gods and is not a pure customary law. It consists of norms and laws that have been followed for centuries and are described in various Sanskrit and Hindu texts. The British rulers in India and Indian legislation have affirmed its applicability to Hindus as long as they were not in conflict with the statute law.
The term “Dharma” is associated with Hindu law, meaning “obligation” in Hindu mythology. Dharma has different meanings depending on the context and religious allusions. Hindu law refers to various responsibilities, including societal, legal, and spiritual responsibilities, and can be defined as the concept of justice (NYAYA). This study, along with Hindu law sources, will draw out inconsistencies in the sources and offer various answers to the problem.
SOURCES OF HINDU LAW:
The sources of Hindu law can be categorized under two heads:
- Ancient
- Modern
- ANCIENT SOURCES:
Hindu law, developed in ancient times, is classified into four categories: Shruti, Smriti, Customs, and Digest and Commentaries. Shruti refers to the sacred words of the god, which are enshrined in the Vedas and Upanishads and have a religious nexus with a person. Smritis are texts remembered and interpreted by rishis throughout generations, including Dharma Sutra (Prose) and Dharmashastras (Poetry).
Commentaries and digestives are the third ancient source of Hindu law, which expanded the scope of Hindu law and played a major role in developing the concept of Hindu law. They help in the interpretation of smritis, with Dayabhaga and Mitakshara being the two most important commentaries.
Customs are traditions practiced in society since ancient times and are classified into two categories: Legal customs and Conventional customs. Legal customs are enforceable or sanctioned by law and can only be deemed invalid until the law itself declares it invalid. There are two types of legal customs: local customs, which are practiced in a local area, and general customs, which are practiced in a large area and are highly recognized by people. Conventional customs are related to the incorporation of an agreement and are conditional.
The essential points of a custom include being continuous in practice, not being vague or ambiguous, having time antiquity, complete observation, certainty, and not opposing a public policy that affects the general public’s interest. In cases where a custom attains judicial recognition, no further proof is required, but in certain cases, the burden of proving its existence lies on the person alleging its existence.
- MODERN SOURCES:
Judicial Decisions: Judgments are regarded as the most significant component of contemporary sources. A judge’s ruling is regarded as final and authoritative. The precedent doctrine was developed and used in instances with similar facts and circumstances to a case that had already been determined.
The laws are seen as the codification of conventions, and they are crucial in extending the meaning of Hindu law. Enacted by the parliament, laws are made.
Fairness, justice, and moral rectitude
The fundamental tenets of law are justice, equality, and morality. When an existing law is inapplicable in a case, this rule of law takes effect, and the court uses logic, justice, equity, and the common good to decide the issue.
This guideline is regarded as the most equitable and rational choice that an individual may make.
The Supreme Court ruled in Gurunath v. Kamlabai that the principles of justice, equity, and good conscience apply in the lack of any existing laws.
Girimalappa v. Kanchava (1924) 51 IA 368
The privy council in this instance prohibited the killer from obtaining the victim’s belongings.
Lawmaker
The primary source of Hindu law is regarded as the legislation. It is regarded as the foundation upon which Hindu law has grown in the contemporary era. It has been said that codifying the law became essential to adapting to the new social situations.
SCHOOLS OF HINDU LAW:
- MISTAKSHARA SCHOOL
The Mitakshara school of Hindu law is considered to be among the most significant. It is Yajnvalkya’s ongoing commentary on the Smriti. All of India is covered by this school, except West Bengal and Assam. The Mitakshara’s jurisdiction is quite broad. However, due to the many customs that each region adheres to, legal practice varies throughout the nation.
Mitakshara is separated into five smaller schools, which are as follows:
Hindu Law School in Benaras, Mithila Legal Program, Maharashtra Legal Academy,
Punjabi Legal Academy, Madras, or Dravida Law School.
The Mitakshara Law School oversees these legal institutions. While they share the same basic idea, there are some differences between them.
- Benaras Law College
This legal school serves Northern India, including Orissa, and is governed by the Mitakshara Legal School. Among its most important remarks are Viramitrodaya Nirnyasindhu vivada.
- Mithila Legal Program
The areas of Tirhoot and North Bihar are within the jurisdiction of this law school. In the North, law school values are the norm. The three main comments of this school are Amritsar, vivadaratnakar, and vivadachintamani.
- Bombay or Maharashtra law school
The Maharashtra Law School is empowered to exercise its jurisdiction over the regions it covers, which include Gujarat, Karana, and areas where Marathi is a widely spoken language. These schools’ principal authorities include Virmitrodaya, Vyavhara Mayukha, etc.
- Madras Law College
Typically, this law school teaches students from all over southern India. Additionally, it uses Mitakshara Law School to carry out its authority. Vaijayanti, Smriti Chandrika, and other principals are in charge of this institution.
- Punjabi legal academy
The majority of this law school’s founding occurred in east Punjab. It had developed its traditions and customs. This school’s primary commentaries are viramitrodaya and its established customs.
- THE DAYABHAGA
The Dayabhaga school was most popular in West Bengal and Assam. Among the most significant schools of Hindu law is this one as well. It is regarded as the leading smriti’s digest. Dealing with inheritance, joint families, and partition was its main objective. Kane states that it was incorporated sometime between 1090 and 1130 A.D.
To eliminate all other ludicrous and artificial conceptions of inheritance, the Dayabhaga school was developed. The inclusion of numerous cognates in the list of heirs, which was restricted by the Mitakshara school, and the tendency to eliminate all the flaws and limitations of the previously established principles are the immediate benefits of this new digest.
Various other commentaries were followed in Dayabhaga school, including:
- Dayatatya
- Dayakram-sangrah
- Virmitrodaya
- Dattaka Chandrika
CONCLUSION
In summary, Hindu law is regarded as the world’s oldest and most extensive body of law. It has existed during every stage. It is roughly six millennia old. Hindu law was created by the people, not to eradicate crime or wrongdoing from society, but rather so that the people would adhere to it to find salvation. Hindu law was initially created to ensure that people’s needs were met. The idea was developed with the welfare of the populace in mind.
Hindu law schools are regarded as the fundamental sources of Hindu law that contributed to the evolution of Hindu law from its inception. It is sometimes referred to as the Smritis’ commentaries and digestives. The scope of Hindu law has been expanded by these institutions, which have also directly aided in its development.
